Illinois draft altered some fracking rules

In combing through the more than 30,000 comments it received this year on proposed rules for a new fracking industry in the state, the Illinois Department of Natural Resources had its hands full.

Some people want to ban fracking, which involves injecting fluids and chemicals at high volumes to crack open shale rock and unleash oil and natural gas. Others pointed out loopholes in proposed regulations. Some wrote in song and verse, others in technical jargon.

Expectations for the latest draft of the rules, submitted Friday for final approval by the Joint Committee on Administrative Rules, are high and the timeline is tight.

If it doesn't gain the committee's approval by Nov. 15, the agency will be forced to start all over again.

The rules are the requirement of a law passed more than a year ago to regulate a legal industry. The IDNR's rules and regulations must be approved by the committee before fracking companies may apply for permits.

"My take on the revisions is that IDNR seems to have worked very hard to digest an enormous body of public comment, and revise the regulations as it saw necessary and appropriate. I think that few people will be able to argue that IDNR rushed the process or otherwise did not fairly consider the staggering volume of comments it received, even if the end result is not considered perfect by either pro- or anti-fracking proponents," said Lawrence Falbe, an environmental defense attorney and partner at the Chicago office of Quarles & Brady.

While it will likely take teams of lawyers both within the oil and gas industry and the environmental community days to pore over the document to determine if and how their particular concerns were addressed, stakeholders who have been involved in the fracking law since the beginning indicated that they had already found issues with the draft submitted Friday.

Mark Denzler, vice president and chief operating officer of the Illinois Manufacturers' Association, which is part of a coalition that supports fracking, said an initial review "expanded the rules beyond what the legislation has set forth."

For instance, Denzler sees additional setbacks in the rules for well bores that aren't required in state law. Denzler said traffic management requirements with local officials go too far compared with the law.

"Quite frankly the department probably should have sat down with both sides and tried to work this out," he said, adding that the lengthy review process combined with the flood of comments made the whole process "flawed."

Groups who don't believe fracking can ever be environmentally safe also were underwhelmed.

"While we would love to give a definitive thumbs up or down today, it is just not possible with such short review time, as these are highly technical rules that require considerable analysis," said Henry Henderson, Midwest director for the Natural Resources Defense Council. "On first read, it appears that a number of the critical changes we requested have been made. However, our legal and technical staff will be spending the Labor Day weekend digging into the rules."

Anti-fracking groups and environmentalists had called for a moratorium or outright ban on the process, pending more research on its effect on public health. In its comments Friday, the IDNR said it could provide neither because it would be directly counter to the intent of the legislation.

"Fracking is a very dangerous practice that threatens the health, water supply and air quality of residents and Sierra Club is opposed to its use in Illinois," said Jack Darin, director of the Illinois Chapter of the Sierra Club.

Sierra Club was among environmental groups that negotiated with industry to pass the original law that opened the door to fracking and hash out regulations for the practice while also opposing the process publicly. The groups said at the time that a moratorium wasn't politically feasible and that they wanted to ensure that if it was going to happen, it was at least done as safely as possible.

"The first draft of these regulations, released in late 2013, were woefully inadequate in many areas, and thousands of citizens from across Illinois packed public hearings and submitted public comments demanding major improvements," Darin said, adding that "no amount of regulation can make dangerous fracking safe."

The committee has 45 days to consider the proposed regulations and can request an additional 45 days. The committee's next hearing is Sept. 16. Rules must be adopted by Nov. 15 or the process starts over.

ILLINOIS FRACKING REGULATIONS, A PRIMER

The Tribune combed through new rules laid out by the Illinois Department of Natural Resources for consideration by the state's Joint Committee on Administrative Rules. Here's a primer on how the department handled some of the most controversial issues that resulted from its first draft:

DISCLOSURE OF FRACKING CHEMICALS

What the law says: Trade secrets about fracking chemicals should be disclosed to health care workers treating patients.

The controversy: Advocates said the original draft made it too difficult for health care workers to obtain timely information. Rules said health care personnel must contact the Illinois Department of Natural Resources "during business hours" or contact the "trade secret holder" directly.

Changed? Yes. The IDNR clarified that companies claiming chemicals are a trade secret must provide the agency a telephone number and email where someone can be reached 24 hours a day. That information will be posted on the IDNR's website.

WATER POLLUTION

What the law says: Wastewater from fracking operations should be stored in closed tanks. If more wastewater reaches the surface than can be stored in tanks, open pits can be used for one week.

The controversy: Environmental groups said rules allowed wastewater to sit in open pits for a week until after all operations are complete, which in practice would be far longer than a total of seven days.

Changed? Yes. New rules say flowback must be removed within seven days from when it was first stored in a pit.

EXISTING FRACKING WELLS

What the law says: Hydraulic fracturing operations that are "planned, have occurred, or are occurring in the state" fall under the new law.

The controversy: Environmental groups said the rules could be interpreted to exclude fracking that has already occurred from revised regulations.

Addressed? Yes. After considering the comments, the IDNR said it agrees that the law and rules changes clearly apply to existing wells.

FRACKING WITHOUT WATER

What the law says: The law doesn't kick in until 80,000 gallons of fluid are injected into underground rock formations to extract oil and gas.

The controversy: Drillers probably won't use water, or any fluid typically measured in gallons, in their fracking operations. Researchers working with oil and gas companies informed the state in 2010 that the state's shale formations are too shallow and too absorbent for water to be of much use in fracking. Instead, scientists have said fracking operations likely will use gas, foam, mist or gel.

Changed? Yes. The new rules lay out that nonwater-based fracking operations should measure materials at their uncompressed, unpressurized volume.

LIABILITY

What the law says: Water pollution found within 1,500 feet of a fracking operation is presumed to have been caused by the fracking operation unless proved otherwise. The law lists 100 chemicals that should be regulated.

The controversy: Health groups said the list of chemicals presumed to come from fracking under regulations is shorter than what's listed in law.

Changed? Yes. The IDNR agreed that the first draft unnecessarily restricted its ability to make a finding of pollution or diminution and changed the rule.

PUBLIC NOTICE

What the law says: Any significant modifications to a fracking permit will undergo public review.

The controversy: Environmental groups said the rules were too narrow in defining "significant." At the same time, oil and gas companies said the review process was too long.

Changed? Yes. The IDNR attempted to write into the rules examples of what would be considered a significant versus an insignificant modification.

LEGAL STANDING

What the law says: Public hearings should be limited to people directly affected by the permit.

The controversy: The oil and gas industries said the rules open the door to unaffected parties to protest applications. They said hearings should be limited to people who own property or have an economic interest affected by a fracking permit.

Changed? No. The IDNR says its definition of "adversely affected" balances the need for an inclusive hearing process with safeguards against abuse.

DENYING PERMITS IN AN EMERGENCY

What the law says: The IDNR can suspend, revoke or refuse to issue a fracking permit if an emergency condition exists that would pose a significant hazard to public health, aquatic life, wildlife or the environment.

The controversy: The oil and gas industry wanted to insert language into the regulations that an emergency condition must be proved based on "evidence reviewed by personnel trained in oil and gas."

Changed? No. The IDNR says the burden to prove that a permit is warranted lies with the company, even in an emergency.